Sports-related injuries: one to watch

Sports-related head trauma litigation is becoming increasingly widespread in certain jurisdictions. Countries such as the USA and Australia have seen a spike in individual and class action lawsuits by former professional, amateur and youth athletes against various institutional defendants, including professional sports leagues, university sports organizations, individual professional sports franchises, medical providers, and manufacturers of sports equipment (among others).

These actions typically allege long-term neurocognitive injuries because of exposure to sports related ‘mild traumatic brain injury’ (MTBI). In many instances, damages are sought long after the alleged injury and indeed the athlete’s retirement.

Defining MTBI

MTBI is otherwise referred to as ‘concussion’ and is typically classified as ‘mild’ if loss of consciousness and/or confusion is shorter than 30 minutes.

MTBI sustained while engaging in sport has created an expansive (and ever expanding) pool of potential claimants/ plaintiffs - presenting new and complex legal challenges for defendants and compensators, as well as the court.

In the US, Australia and UK, sport is estimated as being responsible for a significant – and growing – number of cases treated in hospital. The causes of injury vary from football to motor sports; equestrian activities to rugby.

Claim profile

This veritable tidal wave of litigation began in the US some decades ago. Proceedings were first brought against the National Football League (NFL) and quickly spread to other sports entities and associations, including the National Collegiate Athletic Association (the primary governing body of American university sports), the Nation Hockey League (the professional ice hockey consortium in the US and Canada), Fédération Internationale de Football Association (FIFA), World Wrestling Entertainment Inc. (WWE) and Riddell (the leading manufacturer of football helmets and protective sports equipment).

Running alongside the injury litigation has been corresponding insurance coverage litigation between defendants and insurers (both US and overseas domiciled).

The typical presentation of an injury claim includes allegations of a failure by multiple defendants to:

  • Warn and protect athletes from alleged long-term health risks associated with MTBI.
  • Provide adequate protective sports equipment.
  • Promulgate adequate rules to protect player safety (including so-called ‘return to play’ guidelines following a concussion).

In most cases, the claimant/plaintiff seeks a declaration of liability, as well as financial compensation for:

  • The alleged physical injuries that have or will develop in the future (general damages).
  • Case management, aids and equipment and rehabilitation therapy (including care and support given by family members).
  • Other losses and expenses, including loss of earnings.

In addition to couching the claim in negligence, such claims in the US will also typically plead intentional/fraudulent misconduct and intentional misrepresentation. Some lawsuits also include allegations of civil conspiracy and seek an order for injunctive relief, requiring the defendant(s) to provide funds for medical monitoring of an asymptomatic claimant/plaintiff and the creation of certain league-specific research and/or education funds.

Exposure

Nevertheless, the NFL concussion litigation settlement alone demonstrates the extent of potential exposure to policyholders. The potential exposure also exists with respect to other professional, amateur and youth sports organizations - including baseball, lacrosse soccer/football, motorsport etc. – both inside those jurisdictions already affected and worldwide.

Given the complex and diverse nature of sports-related head and brain injuries, as well as the corresponding pool of potential claimants, a broad array of insurance policies may potentially be implicated by future concussion related actions. Primary general liability, umbrella and excess policies, workers’ compensation and employers’ liability policies, professional liability policies (for, say, trainers and physicians), product liability policies, as well as Directors and Officers liability policies could all be implicated.

Comment

The rapid expansion of sports-related MTBI litigation in some parts of the world has created significant legal and financial exposure for the insurance industry. Even where the underlying liability claims have been resolved, insurance coverage disputes between sports entities and their insurers can continue to exert business pressure. Insurers across the globe need to stay vigilant to this body of claim and take steps to effectively evaluate potential exposure and assess what weapons exist in their armoury.